Obama Tweaks the Birth Control Mandate—and the Right Is Still Angry

August 22, 2014

The controversy over Obamacare’s contraception mandate is back in the news. And it’s the same old story as before. Religious conservatives who run businesses and provide health insurance to employees don’t want those policies to cover all forms of birth control—no matter how hard the government tries to insulate the employers from actually paying for the contraception.

The latest development is a new regulation, which the Administration released on Friday. It’s designed to comply with directives that the Supreme Court handed down early this summer, in the Hobby Lobby and Wheaton College cases. You can read the full details in accounts by the Wall Street Journal's Louise Radnofsky, who broke the story, and MSNBC's Irin Carmon.

The Hobby Lobby part of the new regulation is pretty straightforward. Even before the Court issued its ruling, the Administration had allowed churches and some other religious institutions to opt out of paying for the contraception coverage. It did so by creating a workaround: Employers would notify insurers that they didn’t want to pay for birth control, and insurers would take care of the coverage on their own.

The new regulation basically allows “closely held for-profit” corporations, such as family-controlled businesses, to use the same workaround if their owners have similar objections. The regulation also opens up a comment period, to solicit opinion on how exactly to define what qualifies as a “closely held” corporation and what doesn’t.

The Wheaton part of the regulation is the one that's already provoking the most intense response from the right. As you may recall, administrators at Wheaton had sued, arguing that even the Administration’s workaround was unfair. They said the mechanism imposed an unfair burden on the religious freedom of employers, because it required employers to take action—specifically, to send a letter, notifying insurers of their intent not to provide coverage. Since employers knew that letter would trigger contraception coverage, Wheaton officials argued, the requirement forced them to violate their religious objections to some forms of birth control.

Just days after delivering the Hobby Lobby decision, the Court surprised a lot of people when it effectively sided with Wheaton. The Court issued an injunction, blocking the contraception mandate for Wheaton and like-minded organizations. It wasn’t a full decision on the merits, like a ruling would be, but it signaled clearly that the Court (or at least a majority of its justices) thought Wheaton probably had a strong case. The instructions to HHS were clear: Find some other way to get employees of these companies coverage for their birth control.

The new regulation attempts to do this by further insulating the employers from contraception coverage. Instead of notifying insurers of their unwillingness to pay for contraception, now the employers can just notify the federal government. The agencies (presumably HHS and the Labor Department) will handle things from there. Employees can still get their contraception coverage, but employers no longer have to contact insurers to make that happen.

Are the religious conservatives satisfied? Of course not. “What remains an insulting accounting gimmick does not protect the rights of Americans with sincere conscientious objections,” Arina Grossu, an official with the Family Research Council, said in a release that appeared shortly after the regulation became public. “It is simply another clerical layer to an already existing accounting gimmick that does nothing to protect religious freedom because the employer still remains the legal gateway by which these drugs and services will be provided to their employees.”

It’s hard to say what the Supreme Court will make of this, assuming they weigh in. With Hobby Lobby, the justices implied strongly that the old workaround—the one the Administration was already providing churches and the like—was acceptable. With Wheaton, the Court said that, no, asking employers to write a letter to insurers infringed upon their religious freeom. That’s what made Justice Sonya Sotomayor and two of her colleagues angry enough to write a blistering dissent: The second directive seemed to undermine the spirit of the first

With this new regulation, the Administration is basically calling the Court’s bluff, as Ian Millhiser puts it at ThinkProgress—to force the Court, once and for all, to decide whether any workaround passes muster or if the contraception requirement itself is simply unacceptable. As Nicholas Bagley, blogger and University of Michigan law professor, says, “It’s not easy to see why letter to HHS would make a difference, morally or legally—but it might. These are religious objections, so, to some extent, it depends on what adherents to that religion believe.”

That's the logic of Hobby Lobby, which many of us never liked. One reason is that it inevitably opens up all kinds of other questions. If employers can claim religious objections to covering birth control, then why not transfusions or transplants or stem cell therapies or vaccinations? Who makes the decisions about what’s an acceptable religious objection and what is not? If asking employers to write a two-sentence letter places a burden on their religious freedom, what, pray tell, wouldn’t? And if employers can defy regulations on health insurance by citing religious objections, what other rules can they avoid obeying?

“This is why everybody was so worried about the Hobby Lobby decision in the first place,” Bagley says. “The Court proved itself extremely accommodating to employers who claimed religious objections to neutral laws. The question is, where does that end?”